Martial Law In Us Territories: Legal Declaration?

The United States Constitution and founding documents do not mention martial law, and there is no federal statute that defines what the term means. The term martial law is a vague legal term referring to when the military assumes temporary control over various civilian authorities. In the United States, it is usually a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. Both the US President and the US Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state. So, can a US territory declare martial law?

Martial law in US territories: historical examples

In the United States, martial law refers to instances in history when a region, state, city, or the entire nation was placed under the control of a military body. While the US Constitution does not define martial law, its use throughout history has defined its application and limits. Generally, it refers to when the military temporarily assumes control over civilian authorities, enforcing laws, making policy decisions, and trying accused criminals in military tribunals instead of civilian courts.

Utah Territory, 1857

Tensions between the federal government and the Utah Territory arose in 1857 due to the influence of theodemocracy in Governor Brigham Young's semi-theocratic government, Utah's rejection of federal appointees, and its acceptance of polygamy. In response, President James Buchanan sent US forces to Utah, leading to an event known as the Utah War. Fearing that the large military force had been sent to annihilate them, the Mormons prepared for defence. On September 15, 1857, Governor Young publicly declared martial law in the Utah Territory. He forbade any armed forces from entering the territory and commanded all forces within the territory to be ready to march at a moment's notice to repel any invasion. Young's declaration of martial law aimed to facilitate armed resistance against approaching federal troops.

Hawaii, 1941-1944

During World War II, the territory of Hawaii was placed under martial law from December 7, 1941, to October 24, 1944, following the Japanese attack on Pearl Harbor. Governor Poindexter's declaration of martial law was approved by President Franklin D. Roosevelt, who subsequently used his powers to intern Japanese Americans in camps along the West Coast. The military continued to control labour in Hawaii even after the termination of martial law, as Hawaii was a territory and not yet a state.

New Orleans, 1814-1815

Martial law was declared in New Orleans, Louisiana, from December 12, 1814, to March 13, 1815, during the Battle of New Orleans in the War of 1812. The declaration was made by General Andrew Jackson, who served as the commanding general during the battle. It is unclear when martial law ended in New Orleans, but it may have continued until 1867, when Radical Reconstruction and congressionally administered military rule began.

Vigo County, Indiana, 1935-1936

From July 22, 1935, to February 10, 1936, Vigo County, Indiana, was under martial law due to a general strike that began in Terre Haute. Governor Paul V. McNutt declared martial law to end the violence and force the tram companies to arbitrate. This was an unusual instance of a governor using martial law to intervene in a labour dispute rather than taking the side of property against labour.

The role of the US President

The US Constitution does not explicitly mention martial law, nor does it specify when the President can declare it. There is no federal statute that explicitly authorises the President to declare martial law. However, the Insurrection Act, enacted in 1807, allows the President to deploy military forces domestically and has been invoked multiple times in US history, such as by President Dwight D. Eisenhower to enforce desegregation in Arkansas in 1957.

The Posse Comitatus Act, on the other hand, restricts the President's ability to use the military in civilian law enforcement, which is typically associated with martial law. This Act makes it illegal for federal military forces to engage in civilian law enforcement without express authorisation from Congress.

Historically, several US Presidents have imposed or approved declarations of martial law, such as President Franklin D. Roosevelt's approval of Governor Poindexter's declaration in Hawaii after the attack on Pearl Harbor, and President James Buchanan's deployment of US forces to the Utah Territory in 1857, which led to Governor Brigham Young's declaration of martial law.

The Supreme Court has added to the complexity of the issue, ruling that the Constitution applies to territories like Hawaii, but it has never explicitly stated whether the federal government or the President has the unilateral power to declare martial law. The Court's 1952 Youngstown ruling provides a framework for analysing executive power, suggesting that the President cannot act against Congress' will unless the Constitution grants conclusive and preclusive power over an issue.

In summary, while the US President has some authority to deploy troops and take actions that resemble martial law, the exact scope of their power to impose martial law is uncertain due to the lack of clear definitions, legal precedents, and specific authorisations in federal law.

The role of Congress

Firstly, it is important to note that Congress has the power to impose martial law, as stated in Article 1, Section 9 of the US Constitution, which mentions the suspension of habeas corpus in cases of rebellion or invasion. This power has been exercised by Congress during significant events in US history, such as the Civil War.

Secondly, Congress has the authority to regulate the domestic deployment of the military. This includes enacting laws that govern when and where the military may be used within the United States. These laws are comprehensive and demonstrate Congress's intent to restrict the president's unilateral use of the military, especially in ways that could be interpreted as declaring martial law.

Thirdly, Congress has passed laws that specifically address the use of the military in civilian law enforcement. The Posse Comitatus Act, for example, prohibits federal military forces from engaging in civilian law enforcement activities without express authorisation from Congress. This act further emphasises Congress's role in controlling the domestic use of the military and preventing the declaration of martial law without their consent.

Furthermore, Congress has the power to provide authorisation for the president to deploy the military domestically in certain situations. The Insurrection Act, for instance, allows the president to deploy the military to assist civilian authorities in maintaining law and order. While this act does not grant the president the authority to declare martial law, it provides a framework for the president to act in emergency situations.

Finally, Congress has the ability to pass legislation that clarifies and defines the scope and limits of martial law. Despite the lack of a clear definition of martial law, Congress can enact laws that establish the conditions under which martial law can be declared and the authorities responsible for its imposition. This legislative power enables Congress to provide a clear framework for the declaration and implementation of martial law.

The role of state governors

State governors have also played a role in declaring martial law in specific counties or cities within their states. For example, in 1935, Governor Paul V. McNutt of Indiana declared martial law in Vigo County to end violence during a general strike. Similarly, in 1922, Nebraska Governor Samuel McKelvie imposed martial law in Nebraska City for 20 days due to an unspecified reason.

In some cases, state governors have declared martial law in anticipation of or in response to federal intervention. For instance, in 1857, Governor Brigham Young of the Utah Territory declared martial law to facilitate armed resistance against approaching federal troops, citing his authority as a territorial governor. This incident, known as the Utah War, resulted in a standoff with the federal government and ended with Young's removal from power.

The power of state governors to declare martial law is subject to certain constraints. While states may declare martial law when authorized by state law, their actions are still bound by the Constitution and valid federal laws. Federal courts can review these decisions, and in some cases, as seen in West Virginia, a state Supreme Court can partially invalidate a governor's declaration of martial law.

Additionally, the role of state governors in declaring martial law has evolved over time. While martial law was more common in the mid-19th century and during World War II, it has since disappeared from American life. The last time martial law was declared at the state level was in 1963, and there has been no declaration of martial law by a US president since the restoration of civilian rule in Hawaii in 1944.

The legal definition of martial law

Martial law is a temporary rule by military authorities of a designated area in a time of emergency when civil authorities are deemed unable to function. The legal effects of a declaration of martial law differ in various jurisdictions, but they generally involve a suspension of normal civil rights and the extension to the civilian population of summary military justice or military law. Although temporary in theory, a state of martial law may continue indefinitely.

In the United States, there is no federal statute that defines martial law, nor are there any federal statutes that explicitly authorise the president to declare it. The US Constitution does not grant the president "conclusive and preclusive" power over the issue of domestic military deployment. Instead, it gives most of the relevant authority to Congress. The Supreme Court has never clearly stated whether the federal government has the power to declare martial law, and if so, whether the president could do so unilaterally or whether congressional authorisation would be required.

In nearly every state, the governor has the power to impose martial law within the borders of the state. Two federal statutes authorise the territorial governors of Guam and the US Virgin Islands to declare martial law under certain circumstances.

The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is related to the imposition of martial law.

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